Tory Human Rights Trolling Vol. 145

How's this for a Union dividend? If David Cameron's government secures re-election, the Human Rights Act is for the chop, as is Britain's participation in the European Convention on Human Rights.  So says the Home Secretary Theresa Gray, and Chris Grayling, the Lord Chancellor. 

The British judge on the court will receive his P45. All those elected "unelected Euro judges" will have to spend their time deciding cases lodged against Malta and Liechtenstein instead.  Britain can "repatriate" the ten judgments it actually lost in Strasbourg's "war on British justice" last year.

And the Daily Mail, with exhausting predictability, will eventually turn its fire on our actually-unelected UK Supreme Court over some decision or other. The rhetoric about judicial encroachment on the sovereignty of parliament serves perfectly adequately against domestic tribunals too.  While the hacks will be deprived of the diverting satisfactions of europhobia, the old anti-judicial nostrums still have spice.

Last week, Mark Elliott of the University of Cambridge took an informative look at what might come next. On the domestic side, will the fabled "British Bill of Rights" take shape to replace the repealed human rights protection, or will the Tories take us back to the true-blue days before Tony introduced the Act in 1998? Internationally, it isn't at all clear that we can denounce the ECHR and remain inside the EU, which has, itself, recently acceded to the regime.  Bring it on, some Tory MPs might say. It is easy to make fat-headed speeches in support of such a proposal, but rather harder to realise in practice.

What's missing in all of this is Scotland, and the rest of the devolved powers. Of Holyrood, the Welsh Senedd and Stormont, our ardent Unionist government has said diddly squat. And there's a snag. Yes, the Human Rights Act applies across the UK. Yes, Westminster could repeal the law.  But there's more. ECHR protections are separately written into the Scotland Act, and the Wales Act, and the Northern Ireland Act. Neither the legislative assembles and parliaments, nor their ministers, can act in a way which conflicts with the fundamental rights protected by the ECHR or EU law.  If they do, the courts can and will step in, to keep the legislatures and the politicians in line.

Leaving the jurisdiction of the European Court, or repealing the Human Rights Act, will leave these provisions intact. In the discharge of his ministerial functions, Kenny MacAskill will still have to uphold Article 8's protections of the right to privacy and home life. Holyrood's legislation could still be challenged and knocked down by courts in the name of the property rights, enshrined in the first Article of Protocol No. 1 to the European Convention. 

Legally, Westminster could certainly amend the Scotland Act too to knock out these clauses, but will that be politically possible? I'm not so sure. Nothing in Grayling or May's rhetoric suggest they have thought about the implications of the devolved powers at all, or have the slightest awareness of this considerable problem with their plans.

Since 1998, the constitutional convention has evolved that amendments to devolution legislation must be approved by the parliament they relate to. Thus, Holyrood debated, scrutinised and sanctioned the Scotland Act, passed by Westminster in 2012.  The bottom line: if we vote No in 2014, and the Tories try to knock out the ECHR protections in the Scotland Act, Holyrood would arguably be in a position to veto the idea.

Would it do so? As others have noted, the SNP government's line on human rights has not always been consistent (and in some cases, even intelligible). Salmond has dragooned the idea of judicially-enforceable constitutional rights, and remaining in the ECHR, into the independence debate. If you look back through the legislative record, however, you'll find instances (in the light of Cadder) where both the First Minister and his Justice Secretary have seemed to argue that the ECHR protections written into the Scotland Act should be eliminated.  If the Tories were in a position to offer the Scottish Government just that, would they decline? What about the Welsh Assembly, or the Legislative Assembly in Belfast? A question for another day.

Overall, though, I'm struck yet again by how little these London politicians regard, respect or even understand the evolutions in Britain's constitution of the last almost-two decades. In his Memorials of His Time, the Scottish Whig judge Lord Cockburn observed that "we had wonderfully few proper Jacobins" in this country during the 1780s and '90s, despite the fears of a reactionary Establishment.  Today, it seems, you find marvellously few proper Unionists in this Conservative government.